Opinion
04 Civ. 9554 (KMW) (AJP).
July 21, 2005
REPORT AND RECOMMENDATION
Pro se plaintiff Ethel Feliciano brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Feliciano Supplemental Social Security ("SSI") benefits. (Dkt. No. 2: Complaint.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 10: Notice of Motion.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.
PROCEDURAL BACKGROUND
On February 28, 2002, plaintiff Ethel Feliciano applied for SSI benefits alleging that she had a disability since September 1, 1997, alleging an inability to engage in substantial gainful activity. (See Dkt. No. 9: Administrative Record filed by the Commissioner ["R."] at 101-04.) Feliciano's application was denied initially (R. 64-67), and Feliciano requested a hearing before an Administrative Law Judge ("ALJ") (R. 68-71). The ALJ held a hearing on June 17, 2004, at which Feliciano appeared and testified. (R. 31-63.) On July 9, 2004, the ALJ issued his decision, finding that Feliciano was not disabled. (R. 9-19.) The ALJ's decision became the final decision when the Appeals Council denied Feliciano's request for review on September 3, 2004. (R. 5-7.)The issue before the Court is whether the Commissioner's decision that Feliciano was not disabled is supported by substantial evidence. The Court finds that it was.
FACTS
Hearings Before the ALJ
At the start of the June 17, 2004 hearing before ALJ Michael I. Gewirtz, Feliciano confirmed that the ALJ was not missing any medical records. (R. 36-37.) She confirmed the ALJ's conclusion from his review of the medical records that she has "allegations and diagnosis of dysthymia, borderline personality, substance abuse in remission, carpal tunnel syndrome, myofascial pain, being overweight, degenerative disk disease, osteoarthritis, and scoliosis, gastroesophageal reflux, and Hepatitis C." (R. 37; see also R. 57.) The ALJ explained to Feliciano that although she claimed a disability onset date of September 1997, SSI benefits only are available from the date of application, in Feliciano's case February 28, 2002. (R. 38.)
On April 6, 2004, a hearing was held before ALJ Michael I. Gewirtz (R. 20-30), who gave Feliciano leave to find legal counsel. (Id.) On June 17, 2004, the hearing continued with Feliciano appearing without legal representation. (R. 31-63.) The ALJ reminded Feliciano of her right to have an attorney or other representative, and Feliciano elected to proceed without a representative, since she had been unable to obtain one. (R. 33-35.)
Feliciano testified that she was born on December 31, 1949, was fifty-four years old at the time of the hearing and forty-seven years old in September 1997, her claimed date of disability. (R. 37.) Feliciano is a United States citizen (see R. 105), who has a GED and an Associate's degree in Liberal Arts (R. 38, 43). While enrolled in Hostos Community College, she worked from September 2003 to April 2004 in a Federal Work Study program, working four hours per day and twenty hours per week, earning $400 per month. (R. 38-41, 210.) Feliciano "delivered mail," "made phone calls to other students to participate in activities," and "[m]ost of the time [she] was moving or walking around because [she] couldn't stay to[o] long sitting." (R. 41.) During the four hour workday, Feliciano would spend "two hours sitting and two hours walking." (Id.) She did not lift anything heavy while employed in this program, and would use a push cart to transport office supplies. (R. 41-42.) Before that, she worked at "Wildcat" in 1995, where she received "on-the-job training." (R. 43.) Feliciano also worked while incarcerated, receiving industrial training with the Department of Motor Vehicles, as well as working as a law clerk in prison, where she answered phones, performed research and did "clerical type work." (R. 57.) Feliciano testified that she planned to return to college to receive a four-year Bachelor's degree, if accepted, in order to become a social worker or counselor. (R. 44, 58.)
Feliciano has a history of three drug-related incarcerations for a total of approximately 10 years in jail. (R. 174.)
Records submitted to the Court show that Feliciano enrolled in Lehman College. (See Compl. Atts.)
Feliciano testified that she has back and neck pain, and as a result is unable to lift twenty pounds, although she is able to pick up a gallon of milk with her left hand. (R. 51-53, 58.) She testified that she can only sit for two hours at a time because she has "to keep getting up to stretch [her] legs or they'll fall asleep." (R. 58.) Feliciano can only stand for a half-hour at a time before she has to sit down due to pain in her legs. (R. 59.) Injections and leg raise exercises have helped relieve the pressure on her lower back and neck. (R. 52.) Feliciano has pain going down her neck, and carpal tunnel syndrome in her right arm with numbness in her right thumb. (R. 53-54.) She has received injections in her right wrist which have increased mobility in her fingers. (R. 54.)
Feliciano has been on and off various medications for various periods of time. (See generally R. 47-54.) She currently controls her hepatitis C through her diet and not with medication. (R. 45, 49.) She used to be on medication to relieve pain in her liver, but the pain ceased in June 2003 once she discontinued use of the pain medication Neurontin. (R. 46-47, 49.) Feliciano also takes Prilosec for gastroesophageal reflux disease ("GERD"). (R. 50.) The medication has reduced her GERD symptoms, without side effects. (R. 50-51.) Feliciano feels stress, but is no longer on stress medication. (R. 49-50.) Feliciano said she was "trying to" do something about her weight, by trying to diet, but that was all. (R. 51.)
Feliciano had problems with substance abuse in the past, specifically with "cocaine, crack, marijuana." (R. 54.) She stopped using drugs when she went to prison in 1995 (R. 55), and went to drug counseling until 2002 (R. 55-56). She has not had a drug problem since. (R. 55.) As part of her drug counseling, Feliciano was diagnosed with "dysthyemia and a borderline personality disorder." (R. 55.) As noted above, she was taking Neurontin for that but discontinued it in 2003 because of liver pain. (R. 56.)
The ALJ summed up all the medical and psychological issues that they had discussed and asked Feliciano if he had missed anything. (R. 57.) Feliciano responded:
No. I think that my only problem, it's my criminal record that holds me back, you know, because I've tried to get jobs . . . And, you know, you can't escape the past so my criminal record, when it comes up it's like they look at me and it's like don't worry, we'll call you. Don't call us. And they never call me. That's why I decided to go back to school.
(R. 57.)
To attend her ALJ hearing, Feliciano traveled on her own using public transportation, as she normally does. (R. 42, 59.) Feliciano does her own grocery shopping (id.), and knits as a hobby (id.). Feliciano attends church and social activities regularly (R. 60), dresses and feeds herself (R. 60-61), takes care of her own hygiene (R. 60-61), takes her medication on her own (R. 61), and manages her own money (id.). Feliciano filled out all the paperwork for her work-study and college courses on her own (id.), and has been applying for jobs since her release from prison in September 2001, and the "only problem" preventing her from working was her "criminal record" (R. 57). The Medical Evidence Prior to February 28, 2002
The medical evidence before the ALJ for the period before February 28, 2002 consisted of records from Feliciano's treating physicians at H.S. Systems (R. 147), North Central Bronx Hospital (R. 115, 152, 163, 207), Wyckoff Heights Medical Center (R. 205), and a counselor for her prior substance abuse (R. 154).
Physical Health
On October 4, 2001, Dr. Liebman reviewed an x-ray of Feliciano's lumbosacral spine which showed "minimal degenerative changes." (R. 147.) December 1997 medical records showed mild scoliosis of the lumbar spine associated with osteoarthritis and narrowing of the L5-S1 disks. (R. 145; see also R. 146.)
Dr. Sylvia Fernandes and Dr. Uma Tejwani treated Feliciano beginning in November 2001 at the North Central Bronx Hospital. (R. 115-16, 152, 163, 207.) On December 24, 2001, Dr. Tejwani reported that Feliciano had diabetes mellitus, hyperlipidemia, GERD (gastroesophogeal reflux disease), hepatitis C and low back pain. (R. 152, 207.) At her next visit on February 6, 2002, Feliciano received an injection in the right upper trapezius. (R. 163.) Feliciano was 4'10" tall and 183 pounds, and was considered "morbid[ly] obes[e]." (R. 163.) The physicians prescribed Vioxx and physical therapy once or twice a week for four weeks, and recommended general weight loss. (Id.)
Feliciano was seen at the Wyckoff Heights Medical Center on January 13, 2002. (R. 205.) X-rays of the neck showed "arthritis in C4-C6 with joint space narrowing and compression of nerve, causing numbness and tingling in [the right] arm." (Id.) Nevertheless, a CT scan of the neck was normal, and showed no compressed nerves and normal discs without herniation. (R. 205.) Cervical radiculopathy and carpal tunnel syndrome were diagnosed. (Id.)
Substance Abuse
Prior to the period at issue, Feliciano had a history of drug addiction, incarcerations for possession and sale of controlled substances, and treatment for substance abuse. (R. 153-60.) Feliciano was released from prison in September 2001 and was in a substance abuse rehabilitation program from October 27, 2001 to February 28, 2002, where she saw a counselor three to five times a week. (R. 153-55.) She was diagnosed with a borderline personality disorder. (R. 155.)
The Medical Evidence After February 28, 2002
The medical evidence before the ALJ for the period after February 28, 2002 consisted of a consultative physician's report (R. 176-77), Feliciano's treating physicians at North Bronx Healthcare Network (R. 169-72, 211-21), and treating and consultative psychiatrists (R. 154-60, 173-93).
Physical Health
On March 19, 2002, Dr. Mohammad Khattak performed a consultative orthopedic examination of Feliciano for the Social Security Administration. (R. 176-77.) Dr. Khattak observed that Feliciano ambulated without assistance, her gait was steady, she sat and stood normally, and she got on and off the examining table without assistance. (R. 176.) Feliciano's cervical and lumbar spine were found to be normal, as were her upper and lower extremities. (Id.) X-rays of the lumbosacral spine were negative, and Dr. Khattak diagnosed Feliciano with obesity and lumbosacral derangement. (R. 177.) Dr. Khattak concluded that Feliciano's "ability to bend and lift may be 'mildly' limited, but there are no limitations in sitting, standing, walking or reaching with gross and fine manipulations in her hands." (Id.)
Feliciano was treated by the North Central Bronx Healthcare Network from November 2002 through May 2004. (R. 169-70, 211-21.) On November 19, 2002, the physical therapy outpatient department noted that Feliciano was obese and in need of abdominal strengthening. (R. 169-70.)
On April 30, 2004. Dr. Fernandes and Dr. Tejwani at the North Central Bronx Healthcare Network completed "Medical Assessment" forms sent by the Commissioner. (R. 211-21.) They diagnosed Feliciano's carpal tunnel syndrome as "mild," and stated that she had "no cervical radiculopathy." (R. 211.) X-rays and an MRI reflected degenerative joint disease of the knee (id.), and myofascial pain syndrome was diagnosed (R. 212). The physicians concluded that Feliciano could occasionally lift and carry up to twenty pounds, and could frequently carry up to ten pounds. (R. 214, 219.) They concluded that she had no problems in grasping, pushing, pulling, reaching, fingering, or fine manipulation with either hand. (R. 213-14.) According to the doctors, Feliciano could sit and stand for two hours at a time before needing to sit down or walk around, could sit and stand and walk for at least six hours per day, and could walk four city blocks without stopping. (R. 214, 217-18.) They opined that Feliciano did not need a cane or other assistive device (R. 219), but that she would need to change positions at will and would sometimes need to take one or two ten to twenty minute unscheduled breaks during a workday (R. 217-19). The physicians noted that Feliciano could travel by bus or subway. (R. 214.) According to the physicians, Feliciano's symptoms did not interfere with her attention and concentration, and she could tolerate moderate work stress. (R. 217.) They further reported that Feliciano should avoid concentrated exposure to aggravating environmental factors such as temperature extremes, chemical irritants, fumes, dust, and high humidity. (R. 220.) Although Dr. Tejwani reported that Feliciano could rarely stoop or climb ladders, never crouch, and only occasionally twist (R. 219), Dr. Fernandes noted that Feliciano had no postural limitations (R. 213.).
Dr. Ballard completed a "Physical Residual Functional Capacity Assessment" of Feliciano on May 15, 2002, based on her back disorder. (R. 196-202.) He concluded that she could: occasionally lift or carry fifty pounds and frequently lift or carry twenty-five pounds; sit, stand or walk six hours in an eight hour day; and was unlimited as to push and pull activities. (R. 197.) He found no postural, manipulative, communicative, or environmental limitations. (R. 198-200.)
Mental Health
On March 13, 2002, treating psychiatrist Dr. Bruce Phariss reported that Feliciano was diagnosed with substance dependence in remission, and a personality disorder. (R. 154-60.) Dr. Phariss is a board certified psychiatrist and specialist in addiction, and was the medical director for Exponents Treatment Exchange, the drug rehabilitation program Feliciano attended. (Id.; see also Dkt. No. 11: Gov't Br. at 7.) Dr. Phariss examined Feliciano and reported that she was euthymic, had good hygiene and grooming, was cooperative, answered questions easily, and was logical and goal-oriented. (R. 155-57.) Feliciano told Dr. Phariss that she had interests and hobbies, shopped and cooked, and commuted by subway. (R. 157.) Dr. Phariss noted no limitation in understanding and memory, sustained concentration and persistence, social interaction, or adaption. (R. 158-59.) Dr. Phariss noted that she had back pain and arthritis but that those are not conditions he treated. (R. 159.)
Dr. Herbert Meadow performed a psychiatric consultative examination on Feliciano for the Social Security Administration on March 19, 2002. (R. 174-75.) Dr. Meadow reported that Feliciano has a history of three drug-related incarcerations for a total of approximately 10 years in jail. (R. 174.) Dr. Meadow noted that Feliciano has a history of cocaine abuse and stopped in 1992. (Id.) Feliciano takes Vioxx for her back problems and Lansoprazole for acid reflux. (Id.) Feliciano has a GED, and can read and write. (Id.) Dr. Meadow observed that Feliciano was in a rehabilitation program and lived in a shelter at the time of his report. (Id.) Further, he stated that "she has a poor appetite and her sleeping pattern is variable. She has no history of auditory or visual hallucinations, no history of homicidal/suicidal ideation." (Id.) Dr. Meadow observed that Feliciano's "speech was logical, coherent, [and] goal directed. There was no loosening of associations, circumstantial or tangential thinking. No thought disorder was evident. . . . Her mood was mildly depressed. Her affect was appropriate." (Id.) Dr. Meadow noted that Feliciano reportedly spent her afternoons in the library and at the shelter, watches television, listens to music, and reads. (Id.) Her intelligence level was in the "average range" with unimpaired insight and judgment. (Id.) Dr. Meadow concluded that Feliciano's mental impairment (dysthymia) would not prevent her from working. (R. 175.)
In contrast, in May 2004, when asked to describe any limitations that would affect her ability to work at a regular job on a sustained basis, Dr. Tejwani reported that Feliciano's history of anxiety may affect her ability to work. (R. 221.) Dr. Tejwani did not explain in detail to what extent he felt that Feliciano's ability to work would be affected by her anxiety.
In April 2002, Dr. Allan Hochbergcompleted a "Mental Residual Functional Capacity Assessment" of Feliciano. (R. 178-93.) He found no significant limitations in understanding and memory, sustained concentration and persistence, social interaction and adaptation. (R. 178-79.) Dr. Hochberg made his decision based on categories 12.04 (affective disorders), 12.08 (personality disorders), and 12.09 (substance addiction disorders). (R. 182.) He concluded that Feliciano had "mild to moderate" dysthymia (R. 185) and borderline personality disorder (R. 189). In terms of functional limitations, he found mild limitations in activities of daily living and social functioning, and a moderate degree of limitation in maintaining concentration, persistence or pace. (R. 192.)
The ALJ's Decision
Th ALJ denied Feliciano's application for SSI benefits in a written decision dated July 9, 2004. (R. 9-19.) The ALJ applied the appropriate five step legal standard and reviewed all exhibits in the record, including all medical evidence, as well as the hearing testimony and the arguments presented. (R. 13.) The ALJ noted that Feliciano did not have any past relevant work experience at any time in the last fifteen years other than her participation in the work study program, which he found did not rise to the level of substantial gainful activity. (Id.) The ALJ concluded that "there is no indication that [Feliciano] has engaged in any substantial gainful activity at any time since her alleged onset date, September 1, 1997." (Id.)
The ALJ found that Feliciano had dysthymia, borderline personality disorder and substance abuse which is in remission, all constituting "nonsevere impairments because they do not cause more than a minimal effect on [Feliciano's] ability to perform basic work activities." (Id.) Thus, these are non-severe impairments. (R. 14.) The ALJ found that Feliciano had hepatitis C, GERD, obesity, degenerative disc disease (osteoarthritis/scoliosis), carpal tunnel syndrome, and myofascial pain syndrome, all severe impairments that had more than a minimal impact on her functioning. (R. 13.)
The ALJ found at the third step that Feliciano did not have an impairment that met the criteria of any of the listed impairments in Appendix 1 to subpart P of the Regulations Part 404 (the Listing of Impairments), and that "[n]o treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." (R. 14.)
The ALJ concluded that Feliciano had the ability to lift and carry twenty pounds occasionally and ten pounds frequently, to stand and/or walk for six hours during the course of an eight hour workday, and no limitation on her ability to sit. (R. 17.) The ALJ stated that Feliciano "does not have any nonexertional limitations. She has only mild restrictions on her activities of daily living, on her ability to function socially and on her concentration, persistence and pace." (Id.) Hence, Feliciano "has a residual functional capacity to perform light work." (Id.)
The ALJ concluded that Feliciano "is not disabled within the meaning of the Social Security Act and Regulations," and that "[s]ince [Feliciano] has not been under a disability at any time from September 1, 1997 through the date of this decision, she is not eligible for supplemental security income." (R. 18.)
ANALYSIS
I. THE APPLICABLE LAW A. Definition of Disability
For additional decisions by this Judge discussing, inter alia, the standard of review in Social Security cases in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Rodriguez v.Barnhart, 04 Civ. 4514, 2005 WL 643190 at *5-8 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.); Serrano v. Barnhart, 02 Civ. 6372, 2003 WL 22683342 at *9-12 (S.D.N.Y. Nov. 14, 2003) (Peck, M.J.);Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *6-10 (S.D.N.Y. July 8, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 21755932 (S.D.N.Y. July 30, 2003) (Kaplan, D.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *6-10 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *7-11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhart, 02 Civ. 3121, 2002 WL 31663570 at *5-7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Jimenez v. Massanari, 00 Civ. 8957, 2001 WL 935521 at *6, 8 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Morel v.Massanari, 01 Civ. 0186, 2001 WL 776950 at *4-6 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *6-8 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp. 2d 518, 535-37 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp. 2d 172, 180-82 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v.Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 422-23 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6-7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
A person is considered disabled for Social Security benefits purposes when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v.Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002);Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004);Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002);Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002);.
See also, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999);Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v.Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Martinez v. Massanari, 242 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *4 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp. 2d 265, 268 (S.D.N.Y. 2002);Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *4 (S.D.N.Y. Dec. 23, 2002); Perez v. Barnhart, 234 F. Supp. 2d 336, 339 (S.D.N.Y. 2002).
The combined effect of all impairments must be of such severity that the person
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S. Ct. at 379;Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270;Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.
See also, e.g., Shaw v. Chater, 221 F.3d at 131-32;Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79; Garcia v. Barnhart, 2003 WL 68040 at *4; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v.Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam);see, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at *1 (2d Cir. Oct. 14, 1999);Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). B. Standard of Review
See also, e.g., Rivas v. Barnhart, 01 Civ. 3672, 2005 WL 183139 at *16 (S.D.N.Y. Jan. 27, 2005); Batista v.Commissioner of Soc. Sec., 03 Civ. 10121, 2004 WL 2700104 at *7 (S.D.N.Y. Nov. 23, 2004); Rebull v. Massanari, 240 F. Supp. 2d at 268; Worthy v. Barnhart, 2002 WL 31873463 at *4.
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); Veino v.Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 537 U.S. 961, 123 S. Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v.Apfel, 276 F.3d 103, 108 (2d Cir. 2002); 42 U.S.C. § 405(g). "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y. July 26, 2002).
See also, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999);Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v.Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Rodriguez v. Barhnart, 04 Civ. 4514, 2005 WL 643190 at *6 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.); Rodriguez v.Barnhart, 03 Civ. 7272, 2004 WL 1970141 at *8 (S.D.N.Y. Aug. 23, 2004); Martinez v. Massanari, 242 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *7 (S.D.N.Y. Jan. 13, 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *3 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp. 2d 265, 268-69 (S.D.N.Y. 2002);Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *3 (S.D.N.Y. Dec. 23, 2002); Norris v. Barnhart, 01 Civ. 0902, 2002 WL 31778794 at *3 (S.D.N.Y. Dec. 12, 2002); Morales v.Barnhart, 01 Civ. 4057, 2002 WL 31729526 at *6 (S.D.N.Y. Dec. 5, 2002).
See also, e.g., Duran v. Barnhart, 2003 WL 103003 at *9; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted).
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g., Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v.Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61;Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46. "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991);see also, e.g., Veino v. Barnhart, 312 F.3d at 586;Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Rodriguez v. Barnhart, 2004 WL 1970141 at *9; Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barnhart, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
See also, e.g., Green-Younger v. Barnhart, 335 F.3d at 106 (2d Cir. 2003); Batitsta v. Commissioner of Soc. Sec., 03 Civ. 10121, 2004 WL 2700104 at *5 (S.D.N.Y. Nov. 23, 2004); Rodriguez v. Barnhart, 2004 WL 1970141 at *9;Martinez v. Massanari, 242 F. Supp. 2d at 375; Duran v.Barnhart, 2003 WL 103003 at *9; Garcia v. Barnhart, 2003 WL 68040 at *3; Worthy v. Barnhart, 2002 WL 31873463 at *3;Norris v. Barnhart, 2002 WL 31778794 at *3; Morales v.Barnhart, 2002 WL 31729526 at *6; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v.Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, 42 U.S.C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 CFR § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." §§ 404.1520(b), 416.920(b). [2] At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. omitted); accord, e.g., Green-Younger v.Barhnart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774.
Amendments to 20 C.F.R. 404.1520 became effective September 25, 2003. See 68 Fed. Reg. 51153, 2003 WL 22001943 (Aug. 26, 2003); see also Barnhart v. Thomas, 540 U.S. at 25 n. 2, 124 S. Ct. at 380 n. 2. The amendments, inter alia, added a new § 404.1520(e) and redesignated previous §§ 404.1520(e) and (f) as §§ 404.1520(f) and (g), respectively. 20 C.F.R. § 404.1520; see 68 Fed. Reg. 51156. The new § 404.1520(e) explains that if the claimant has an impairment that does not meet or equal a listed impairments, the SSA will assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520(e). The SSA uses the residual functional capacity assessment at step four to determine whether the claimant can perform past relevant work and, if necessary, at step five to determine whether the claimant can do any work. See 68 Fed. Reg. 51156. The ALJ appropriately utilized the residual functional capacity assessment amendments in this case. (See R. 15-17.)
See also, e.g., Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982);Batitsta v. Commissionerr of Soc. Sec., 2004 WL 2700104 at *6; Rodriguez v. Barnhart, 2004 WL 1970141 at *9-10;Martinez v. Massanari, 242 F. Supp. 2d at 375-76; Garcia v.Barnhart, 2003 WL 68040 at *4; Worthy v. Barnhart, 2002 WL 31873463 at *4; Norris v. Barnhart, 2002 WL 31778794 at *3-4;Perez v. Barnhart, 234 F. Supp. 2d 336, 339 (S.D.N.Y. 2002);Soto v. Barnhart, 2002 WL 31729500 at *4-5.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80; Green-Younger v. Barnhart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d at 472; Curry v.Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80;Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Rodriguez v. Barnhart, 2004 WL 1970141 at *10.
Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v.Shalala, 54 F.3d at 1031; see, e.g., DeLeon v. Secretary of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984). C. The Treating Physician Rule
See also, e.g., Miles v. Apfel, 51 F. Supp. 2d 266, 269 (E.D.N.Y. 1999); Nivar v. Apfel, 98 Civ. 3930, 1999 WL 163397 at *4-5 n. 8 (S.D.N.Y. Mar. 23, 1999); Vitale v.Apfel, 49 F. Supp. 2d 137, 142 (E.D.N.Y. 1999); Irvin v.Heckler, 592 F. Supp. 531, 540 (S.D.N.Y. 1984).
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2); see, e.g., Green-Younger v.Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Kamerling v.Massanari, 295 F.3d 206, 209 n. 5 (2d Cir. 2002); Jordan v.Barnhart, No. 01-6181, 29 Fed. Appx. 790, 792, 2002 WL 448643 at *2 (2d Cir. Mar. 22, 2002); Bond v. Social Sec. Admin., No. 00-6333, 20 Fed. Appx. 20, 21, 2001 WL 1168333 at *1 (2d Cir. Sept. 27, 2001); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
See also, e.g., Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); Martinez v. Massanari, 242 F. Supp. 2d 372, 376 (S.D.N.Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *5 n. 4-5 (S.D.N.Y. Jan. 7, 2003).
Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503; Martinez v. Massanari, 242 F. Supp. 2d at 376; Garcia v. Barnhart, 2003 WL 68040 at *6; Rebull v. Massanari, 240 F. Supp. 2d 265, 268 (S.D.N.Y. 2002).
The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). II. THE GOVERNMENT'S MOTION SHOULD BE GRANTED, WITHOUT THE NEED TO APPLY THE FIVE STEP SEQUENCE TO FELICIANO'S CLAIM, BECAUSE FELICIANO'S COMPLAINT IS CONCLUSORY AND SHE DID NOT FILE PAPERS OPPOSING THE GOVERNMENT'S MOTION
For additional decisions by this Judge discussing the grant of judgment on the pleadings to the Government in Social Security cases where the plaintiff has filed no opposing papers (or only conclusory papers) in language substantially similar to that in this entire section of this Report and Recommendation,see Morgan v. Barnhart, 04 Civ. 6024, 2005 WL 925594 at *9-10 (S.D.N.Y. Apr. 21, 2005) (Peck, M.J.); Rodriguez v.Barnhart, 04 Civ. 4514, 2005 WL 643190 at *8-9 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.); Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *9 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *10 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *6-8 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *7 (S.D.N.Y. July 11, 2001) (Peck, M.J.);Casiano v. Apfel, 39 F. Supp. 2d 326, 327-28 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.), aff'd mem., No. 99-6058, 205 F.3d 1322 (table), 2000 WL 225436 (2d Cir. Jan. 14, 2000).
In a proceeding to judicially review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) ("The claimant generally bears the burden of proving that she is disabled under the statute . . ."); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981) ("It is well established that the burden of proving disability is on the claimant."); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980);Adams v. Flemming, 276 F.2d 901, 903 (2d Cir. 1960) ("The controlling principles of law upon [judicial] review [of a Social Security denial] are well established . . ., namely, 'the burden of sustaining the claim for benefits is on the claimant' and 'The findings of the Social Security Agency are final and binding if there is a substantial basis for them.'").
See also, e.g., Pena v. Barnhart, 01 Civ 502, 2002 WL 31487903 at *8 (S.D.N.Y. Oct. 29, 2002); Reyes v.Barnhart, 01 Civ 1724, 2002 WL 31385825 at *5 (S.D.N.Y. Oct. 21, 2002); Ortiz v. Shalala, 93 Civ. 3561, 1994 WL 673630 at *1 (S.D.N.Y. Dec. 1, 1994); Morton v. Heckler, 586 F. Supp. 110, 111 (W.D.N.Y. 1984); Harvey L. McCormick, Social Sec. Claims Proc. § 14:16 (5th ed. 1998) ("In a proceeding to review judicially a final decision of the Commissioner, the plaintiff has the burden of establishing the correctness of his or her contention. The procedure is akin to that in a regular civil appeal under the Federal Rules of Civil Procedure. . . .").
Here, Feliciano's pro se complaint states only that she should receive Social Security SSI benefits because of her psychiatric disorder. (Dkt. No. 2: Compl. ¶ 4.) Feliciano has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings, and the filing deadline for doing so has passed. (See Dkt. No. 6: 2/9/05 Stip. Order, setting a deadline of 5/20/05 for Feliciano's opposition papers.) Thus, Feliciano does not point to any specific testimony or evidence which she believes the ALJ overlooked or unjustly weighed. Feliciano's complaint is conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. See cases cited in n. 15; see also Reyes v. Barnhart, 01 Civ. 4059, 2004 WL 439495 at *3 (S.D.N.Y. Mar. 9, 2004) (following my decisions in Jiang, Alvarez and Morel); Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996) (Court rejects plaintiff's allegations that the ALJ "failed to consider [minor claimant's] parent's testimony as medical evidence, failed to consider all the medical evidence, failed to consider [child's] mother's testimony with respect to the IFA analysis, and failed to render his decision based upon the record as a whole," on the ground that they are "broad and conclusory. She offers no specific testimony or evidence which she believes that the ALJ overlooked and should have considered."); Steiner v. Dowling, 914 F. Supp. 25, 28 n. 1 (N.D.N.Y. 1995) (rejecting plaintiffs' argument that the State's social security regulations are too restrictive as "neither sufficiently explained nor seriously advanced by plaintiffs — providing only a single conclusory paragraph in their Statement of Undisputed Facts . . ., and in their Attorney's Affirmation. . . ."), aff'd, 76 F.3d 498 (2d Cir. 1996); see generally S.D.N.Y. Local Civil Rule 7.1 ("all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion. . . . Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.").
Attached to Feliciano's complaint are medical reports from a time in late 1994 after the ALJ and Appeals Council's decisions. (Compl.: Atts.) They are contradictory. There is a 9/16/04 report from North Central Bronx Hospital that states that Feliciano "is now medically cleared and can return to work/school on full duty on 9/17/04" (apparently related to vertigo from diabetes), and a 10/7/04 note from Dr. Fernandes that her back was "injected with lidocaine . . . with beneficial results," but also two mental health reports (8/27/04 and 10/19/04) that Feliciano is unable to work based on "serious and persistent mental illness."
Evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner.See, e.g., 42 U.S.C. § 405(g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security. . . ."); Carnevale v.Gardner, 393 F.2d 889, 891 n. 1 (2d Cir. 1968) (district court correctly refused to consider materials not properly in administrative record); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *8-9 n. 20 (S.D.N.Y. July 11, 2001) (Peck, M.J.) ( cases cited therein); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *2 n. 6 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Casiano v. Apfel, 39 F. Supp. 2d 326, 330 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.), aff'd mem., 205 F.3d 1322 (2d Cir. 2000).
Although the Court cannot consider new evidence, this Court may remand to the Commissioner to consider new evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has summarized the three-part showing required by this provision as follows:
"[A]n appellant must show that the proffered evidence is (1) "'new' and not merely cumulative of what is already in the record," and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show (3) good cause for her failure to present the evidence earlier."Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citations omitted) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)); accord, e.g., Morel v. Massanari, 2001 WL 776950 at *8 n. 21 ( cases cited therein).
In this case, the new doctors' evaluations are not material to Feliciano's claim because they are contradictory, and cover a period after the ALJ (and Appeals Council's) decision in this action, and thus are "not probative of plaintiff's condition during the period covered by the claim." Casiano v. Apfel, 39 F. Supp. 2d at 331-32; accord, Morel v. Massanari, 2001 WL 776950 at *8 ( cases cited therein).
Accordingly, the Court need not remand to the Commissioner to consider this additional evidence. Feliciano may, however, file a new application for SSI benefits with the Social Security Administration based upon the new medical evidence that purports to show she is currently unable to work.
III. APPLICATION OF THE FIVE STEP SEQUENCE TO FELICIANO'S CLAIMS
For the reasons set forth in Point II above, the Court need not apply the five-step sequence to Feliciano's claims. Even if the Court were to do so, however, the Commissioner's decision that Feliciano was not disabled should be affirmed since it is supported by substantial evidence. A. Feliciano Was Not Engaged in Substantial Gainful Activity
The first inquiry is whether Feliciano was engaged in substantial gainful activity after her application for SSI benefits. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. The ALJ's conclusion that Feliciano was not engaged in substantial gainful activity during the applicable time period is not disputed.
See, e.g., Rodriguez v. Barnhart, 04 Civ. 4514, 2005 WL 643190 at *9-12 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.);Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *10 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *11 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.) (citing my prior cases), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.).
B. Feliciano Had Demonstrated Severe Physical Impairments That Significantly Limited Her Ability To Do Basic Work Activities
The next step of the analysis is to determine whether Feliciano proved that she had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] [her] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking. . . . [u]nderstanding, carrying out, and remembering simple instructions. . . . [u]se of judgment. . . . [r]esponding appropriately to supervision, co-workers and usual work situations. 20 C.F.R. § 404.1521(b)(1)-(5). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
See also, e.g., Rodriguez v. Barnhart, 04 Civ. 4514, 2005 WL 643190 at *10 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 6372, 2003 WL 21511160 at *11 (S.D.N.Y. Nov. 14, 2003) (Peck, M.J.); Acosta v.Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Apr. 10, 2002) (Peck, M.J.) (citing my prior cases), report and rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.).
Accord, e.g., Rodriguez v. Barnhart, 2005 WL 643190 at *10; Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *10 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 2003 WL 21511160 at *11; Acosta v. Barnhart, 2003 WL 1877228 at *11; Alvarez v. Barnhardt, 2002 WL 31663570 at *9.
"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 13, 1999) (citing 20 C.F.R. § 404.1520(C)); accord, e.g., Rodriguez v. Barnhart, 2005 WL 643190 at *10; Jiang v. Barnhart, 2003 WL 21526937 at *10. On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.
See also, e.g., Rodriguez v. Barnhart, 2005 WL 643190 at *10; Jiang v. Barnhart, 2003 WL 21526937 at *10;De Roman v. Barnhart, 2003 WL 21511160 at *11; Acosta v.Barnhart, 2003 WL 1877228 at *12; Alvarez v. Barnhardt, 2002 WL 31663570 at *9.
"A finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 1999 WL 294727 at *5 (quotingBowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S. Ct. 2287, 2298 n. 12 (1987)).
The ALJ found Feliciano "has Hepatitis C, GERD, obesity, degenerative disc disease (osteoarthritis/scoliosis), carpal tunnel syndrome and myofascial pain syndrome. These are impairments that cause more than minimal restrictions in the ability to perform basic work acitvity and therefore, they are severe impairments." (R. 13.) This finding is not disputed. C. Feliciano Did Not Have A Disability Listed in Appendix 1 of the Regulations
The ALJ also found that Feliciano's dysthymia, borderline personality disorder and substance abuse in remission are non-severe impairments. (R. 13-14.) The Court will review this at the later stages of the five step sequence.
The third step of the five-part test requires a determination of whether Feliciano had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
Accord, e.g., Rodriguez v. Barnhart, 04 Civ. 4514, 2005 WL 643190 at *10 (S.D.N.Y. Mar. 21, 2005) (Peck, M.J.);Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *11 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *12 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *13 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.) (citing my prior cases), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.).
The ALJ found that although Feliciano's physical impairments were "severe," her impairments did not "meet or equal the specific requirements established for a listed impairment in the listings of impairments in Appendix 1, Subpart P. . . ." (R. 14.)
Appendix1 provides a categorization of physical (and mental) impairments, including the musculoskeletal, respiratory, cardiovascular, digestive, and multiple body, systems. 20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 1.00, 3.00, 4.00, 5.00, 10.00. Feliciano's physical impairment diagnoses from treating physicians were hepatitis C, GERD, obesity, degenerative disc disease (osteoarthritis/scoliosis), carpal tunnel syndrome, and myofascial pain syndrome. (See R. 13-15.)
Feliciano's hepatitis C does not satisfy the Appendix 1 requirement. Section 5.05 provides for chronic liver disease, including "chronic active hepatitis," and outlines certain conditions for these specific diseases. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 5.05. Feliciano's hepatitis C does not satisfy any of the conditions set forth in § 5.05. Indeed, Feliciano is able to control her hepatitis through her diet without needing medication. (R. 45, 49.) While she used to be on medication to relieve pain in her liver, the pain ceased once she discontinued use of the pain medication Neurontin. (R. 46-47, 49.)
The diagnosis of obesity is addressed generally throughout the Listing of Impairments in multiple sections, in the same language:
Effects of obesity. Obesity is a medically determinable impairment that is often associated with disturbance of the [cardiovascular] system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with [cardiovascular] impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity.20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 1.00(Q), 3.00(I), 4.00(F). Obesity thus must be considered in light of the effects it causes on the body. The ALJ found that Feliciano's obesity did not rise to the level of severity outlined in the Listings, noting that none of the physicians reported "findings equivalent in severity to the criteria of any listed impairment." (R. 14.)
The ALJ found that Dr. Tejwani's and Dr. Fernandes' diagnosis of osetoarthritis and scoliosis constituted a severe impairment but not one in the Listings. Sections 1.00(L) and 101.00(L) provide in pertinent part that "[a]bnormal curvatures of the spine (specifically, scoliosis . . .) can result in impaired ambulation, but may also adversely affect functioning in body systems other than the musculoskeletal system." 20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 1.00(L), 101.00(L). Further, §§ 14.00(B)(6) and 14.09 address arthritis, stating "inflammation of major joints may . . . caus[e] difficulties with ambulation or fine and gross movements, or the arthritis may involve other joints or cause less restriction of ambulation or other movements but be complicated by extra-articular features that cumulatively result in serious functional deficit," and further explains that "[t]he terms inability to ambulate effectively and inability to perform fine and gross movements effectively in 14.09A have the same meaning as in 1.00B2b and 1.00B2c and must have lasted, or be expected to last, for at least 12 months." 20 C.F.R., Pt. 404. Subpt. P, App. 1, § 14.00(B)(6). Additionally, § 14.00(b)(6)(D) provides that "extra-articular features of an inflammatory arthritis may satisfy the criteria," and that radiculopathy is a commonly occurring extra-articular impairment. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 14.00(B)(6)(d).
§ 1.00(B)(2)(b) defines "ambulate" as:
Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. . . .20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1). § 1.00(B)(2)(b)(2) notes that:
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to or from a place of employment or school.
Inability to perform fine and gross movements is defined as mobility to reach, push, pull, grasp and finger to be able to carry out activities of daily living. § 1.00(B)(2)(c).
The treating and consultative physicians' reports found that Feliciano did not have difficulty ambulating, nor did she have radiculopathy. On March 19, 2002, Dr. Khattak observed that Feliciano ambulated without assistance, her gait was steady, she sat and stood normally, and got on and off the examining table without assistance. (R. 176). Moreover, on April 30, 2004, treating physician Dr. Fernandes found that Feliciano had "no cervical radiculopathy." (R. 211.) The ALJ therefore found that Feliciano's osetoarthritis and scoliosis did not rise to the level of severity outlined in the Listings of Impairments, noting that none of the physicians reported "findings equivalent in severity to the criteria of any listed impairment." (R. 14.)
Dr. Tejwani's diagnosis of gastroesophageal reflux disease ("GERD") is not specifically listed anywhere in the Listing of Impairments. Therefore, as the regulation provides, "in any case in which an individual has a medically determinable impairment that is not listed, an impairment that does not meet the requirements of a listing, or a combination of impairments no one of which meets the requirements of a listing, we will consider medical equivalence." 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(H)(4). Looking to the digestive system categories of impairments under § 5.00 and beyond, Feliciano's GERD does not constitute an impairment. As both physicians and the ALJ observed, Feliciano successfully curbs the pain of her gastroesophageal reflux by taking Prilosec. (See page 4 above.)
The appropriate sections provide:
§ 5.02 Recurrent upper gastrointestinal hemorrhage from undetermined cause with anemia manifested by hematocrit of 30 percent or less on repeated examinations.
§ 5.03 Stricture, stenosis, or obstruction of the esophagus (demonstrated by endoscopy or other appropriate medically acceptable imaging) with weight loss as described under listing 5.08.
§ 5.04 Peptic ulcer disease (demonstrated by endoscopy or other appropriate medically acceptable imaging). With:
A. Recurrent ulceration after definitive surgery persistent despite therapy; or
B. Inoperable fistula formation; or
C. Recurrent obstruction demonstrated by endoscopy or other appropriate medically acceptable imaging; or,
D. Weight loss as described under § 5.08.
Likewise, carpal tunnel syndrome does not specifically appear in the Listing of Impairments. § 1.02 outlines the musculoskeletal categories of impairments and addresses the major dysfunction of joints due to any cause, and provides that such dysfunction be characterized by:
[G]ross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: . . .
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively . . .20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02 (emphasis added).
On April 30, 2004. Dr. Fernandes found that Feliciano's carpal tunnel syndrome was "mild." (R. 211.) Additionally, Dr. Khattak observed on March 19, 2002 that Feliciano's "ability to bend and lift may be 'mildly' limited, but there are no limitations in sitting, standing, walking or reaching with gross and fine manipulations in her hands." (R. 177.) Finally, treating physicians Dr. Fernandes and Dr. Tejwani found that Feliciano had no significant limitation in grasping, pushing, pulling, reaching, fingering, or fine manipulation with either hand. (R. 214, 219.) The ALJ found that Feliciano's carpal tunnel syndrome did not rise to the level of severity outlined in 20 C.F.R., Pt. 404, noting that none of the physicians reported "findings equivalent in severity to the criteria of any listed impairment." (R. 14.)
The ALJ found that Dr. Tejwani's and Dr. Fernandes' diagnosis of general myofascial pain syndrome constituted a severe impairment but not one listed in 20 C.F.R., Pt. 404. On April 30, 2004, the physicians diagnosed Feliciano with myofascial pain syndrome after examining X-rays and an MRI. (R. 211-12.) As seen above, the listing of musculoskeletal impairments does not include general myofascial pain, and provides that the pain be coupled with limitation in motion. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02. Given the multiple physicians' reports that found no limitations in Feliciano's overall mobility and ambulation (see pages 4, 7 31 above), the ALJ's finding that Feliciano's general myofascial pain syndrome did not rise to the level of severity outlined in the Listings is supported by substantial evidence. (R. 14.)
Since none of Feliciano's treating or consulting physicians found that Feliciano was disabled due to physical impairment, the ALJ was entitled to rely on that absence of evidence of disability. See, e.g., Salvaggio v. Apfel, No. 01-6062, 23 Fed. Appx. 49, 51, 2001 WL 1388521 at *1 (2d Cir. Nov. 6, 2001) (lack of medical evidence supports the ALJ's determination that plaintiff was not disabled); O'Connor v. Shalala, No. 96-6215, 111 F.3d 123 (table), 1997 WL 165381 at *1 (2d Cir. Mar. 31, 1997) ("the Commissioner is also entitled to rely on the absence of contemporaneous evidence of the disability"); Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Dumas v.Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the [medical] record says, but also on what it does not say"); Rodriguez v. Barnhart, 04 Civ. 4514, 2005 WL 643190 at *12; Catrain v. Barnhart, 325 F. Supp. 2d 183, 192 (E.D.N.Y. 2004) ("[T]he ALJ is entitled to rely on the absence of opinions. . . ."); Jiang v. Barnhart, 2003 WL 21526937 at *13; De Roman v. Barnhart, 2003 WL 21511160 at *13; Alvarez v. Barnhart, 2002 WL 31663570 at *10; De La Cruz v. Chater, 937 F. Supp. 194, 197 (E.D.N.Y. 1996).
The Court finds that the ALJ's decision that Feliciano did not satisfy any Appendix 1 Listing is supported by substantial evidence.
D. Feliciano Has the Ability to Perform Light Work
The fourth prong of the five part analysis is whether Feliciano retains the residual functional capacity to return to her past relevant work. As the ALJ correctly notes, Feliciano has no past relevant work experience at any time in the past fifteen years, other than non-qualifying parttime work in a work study program (R. 17), so this prong is inapplicable. The ALJ therefore turned to the fifth prong, on which the SSA has the burden of proof, to determine if Feliciano has the residual functional capacity to perform other jobs in the national economy. (R. 15-17.)
The ALJ found that Feliciano can perform light work despite her impairments. (R. 17.) In addition to her mobility not being limited (see pages 4, 7 31 above), both the physicians and the ALJ acknowledged that Feliciano is relatively active despite her reported impairments; she lives alone and is independent in self care, doing her own shopping and household chores, and using public transportation. (See pages 5 10 above.) She also has been going to college and received an Associate's degree, attended a drug rehabilitation program on a daily basis, and plans to get her Bachelor's degree. (See pages 3-5 above.)
Dr. Tejwani reported that Feliciano's history of anxiety may affect her ability to work. (R. 221.) Yet, in light of the "treating physician's rule," the Court gives more weight to the treating psychiatrist's opinion as to Feliciano's mental health than Dr. Tejwani, who is an internal medicine practitioner. See 20 C.F.R. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii); Taveras v.Callahan, 96 Civ. 8014, 1997 WL 441905 *5 n. 3 (S.D.N.Y. August 6, 1997) ("[A] doctor's opinion in an area of nonexpertise will be considered but will be given less weight than that of a doctor who treated Plaintiff in his or her area of expertise.") Feliciano's treating psychiatrist, Dr. Phariss, reported on March 13, 2002 that Feliciano was euthymic, had good hygiene and grooming, was cooperative, answered questions easily, and was logical and goal-oriented. (R. 154-60.) Further, Dr. Phariss noted that Feliciano had no limitation in understanding and memory, sustained concentration and persistence, social interaction, or adaption. (R. 157-58.) In light of Dr. Phariss's established expertise in psychiatry and his decisive report on Feliciano's mental state, the Court finds that substantial evidence supports the ALJ's ruling that Feliciano can perform light work despite her mental impairments. (R. 15.)
20 C.F.R. §§ 404.1527(d)(2)(ii) and 416.927(d)(2)(ii) both provide that:
Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain.
In addition, Dr. Meadow, the consultative psychiatrist, concluded on March 19, 2002, that any mental impairment Feliciano may have would not prevent her from working. (R. 175.) The Court finds Dr. Meadow's report to be helpful, despite him being a consultative, and not a treating, physician. In light of the "treating physician's rule" and 20 C.F.R. 416.927(f)(2)(i), which states "administrative law judges must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence . . .," the Court accords the appropriate deference to the treating and consultative psychiatrists here.
The ALJ's finding that Feliciano retained the residual functional capacity for light work despite her physical impairments also is supported by substantial evidence. Treating physicians Dr. Tejwani and Dr. Fernandes reported that Feliciano could sit or stand for six hours in an eight hour workday, carry twenty pounds occasionally and ten pounds frequently, and had no other restrictions that would prevent light work. (R. 16-17; see also pages 8, 9, 12 33 above.) Feliciano's daily activities — including attending school — further support the ALJ's conclusion. (R. 16-17; see also pages 5-6 35 above.) The consulting doctor concurred. (See page 10 above.) Based on Feliciano's age and education, and her limitations or lack thereof, the ALJ correctly found that she was not disabled. See 20 C.F.R. Part 404, Subpt. P, App. 2, § 202.13 (a person of "advanced" age who is a high school graduate or more, with unskilled or no prior work experience, is not disabled for light work); see, e.g., Brown v. Barnhart, 04 Civ. 2450, 2005 WL 991769 at *4 (S.D.N.Y. Apr. 27, 2005) (affirming the ALJ's ruling that petitioner was not disabled in light of substantial evidence showing that "an individual of [petitioner's] age, education, and work experience . . . was capable of performing the exertional requirement of sedentary, light, and medium work"); Davila v. Barnhart, 03 Civ. 3981, 2004 WL 2914073 at *8-9 (S.D.N.Y. Dec. 15, 2004) (upholding the ALJ's use of the Medical Vocational Guidelines to determine that plaintiff could perform light work); Loftin v. Barnhart, 01 Civ. 1118, 2002 WL 31202760 at *12-14 (S.D.N.Y. Sept. 3, 2002) (upholding ALJ's determination that plaintiff could perform light work, based on the Medical Vocational Guidelines and plaintiff's own testimony, residual functional capacity assessment and medical testimony);Elias v. Apfel, 54 F. Supp. 2d 172, 178-79 (E.D.N.Y. 1999) (affirming the ALJ's use of the Medical Vocational guidelines in ruling that petitioner was not disabled because there was substantial evidence that petitioner, a high school graduate approaching advanced age, retained a residual functional capacity to perform light work).
CONCLUSION
For the reasons set forth above, the Commissioner's determination that Feliciano was not disabled within the meaning of the Social Security Act is supported by substantial evidence. The Commissioner's motion for judgment on the pleadings (Dkt. No. 10) should be granted.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).